R v Abdaly; R v Hosseinishoja (No 4)

1. [1]

   By notice of motion dated 24 October 2022, [1] the Director of Public Prosecutions (DPP) sought orders pursuant to s 5B of the Evidence (Audio and Visual Links) Act 1998 (NSW) (the Act) in relation to the following ten witnesses, the first seven of whom are referred to by pseudonyms:

2. [2]

   The motion ran concurrently with several other pre-trial applications including a motion by the NSW Police Commissioner (the police or the Commissioner) seeking various “protective” orders relating to the same witnesses (or some of them), [2] a contested application for a “trial by judge order” under s 132 of the Criminal Procedure Act 1986 (NSW) (the CP Act), a belated and time-consuming objection to evidence the prosecution sought to lead at the trial concerning what was called “criminal group” evidence, and several motions concerned with subpoenas issued by various parties. Some of these issues were inter-related and the outcome of some impacted on the position the parties took on the present motion.

3. [3]

   The two accused, who are charged with murder, opposed some of the AVL orders but did not oppose others. This has an impact on the “test” to be applied in determining the application where the burden of persuasion lies. By the time of delivering this judgment, because of other orders made, the only area of controversy concerns Witness A.

4. [4]

   The police were represented by counsel and played a proactive role in the tendering of evidence (most of it confidential and not seen by the parties to the criminal proceedings) and making submissions. The police have a significant interest in the outcome of the application because they are charged with the responsibility of protecting the witnesses and have information relevant to the application which is not in the possession of the parties.

The evidence

1. [5]

   The DPP read an affidavit of the solicitor with carriage of the prosecution. [3] This set out, in general terms, the circumstances pertaining to each of the witnesses and why the application was made in each case.

2. [6]

   Towards the end of the pre-trial hearing, Mr Hosseinishoja tendered redacted copies of two email chains between the police officer in charge and Witness A. [4] These documents had been produced under subpoena in that redacted form.

3. [7]

   The police provided the following evidence:

   1. (1)

      An “open affidavit” of Assistant Commissioner Scott Cook sworn 21 October 2022. [5]

   2. (2)

      A confidential affidavit of Mr Cook sworn the same date. [6]

   3. (3)

      A supplementary confidential affidavit of Assistant Commissioner Scott Whyte sworn 26 October 2022. [7]

   4. (4)

      A confidential affidavit of Detective Senior Constable Anthony Moore sworn 28 October 2022. [8]

   5. (5)

      Unredacted (and confidential) copies of the email chain (Ex VD-8 and VD 9) tendered by Mr Hosseinishoja. [9]

   6. (6)

      A confidential affidavit of Assistant Commissioner Stacey Maloney sworn 4 November 2022. [10]

4. [8]

   Each of the confidential documents was received without objection and contained in a sealed envelope marked “confidential”. Each will be returned to the Crown Solicitor’s Office (“CSO”) on publication of this judgment or, if there are residual issues to which they are relevant, upon determination of those issues. [11]

Written submissions

1. [9]

   Counsel for the police handed up written submissions prepared by a different counsel (Mr Lee) and used when the matter was before Fagan J in 2021. [12] In an email to my Associate, the CSO indicated that I was invited to read paragraphs 4-17, 21, 22(d), 28, 30-32, 34-35 and 38 of those written submissions. The submissions were not addressed specifically to the current issues or the DPP’s application to call the witnesses via AVL. However, they covered those matters generally and provided a helpful survey of the law relating to the Court’s statutory and inherent powers to make various protective orders of the kind now under consideration and relevant considerations that guide the exercise of those powers. The submissions emphasised the public interest in making orders protecting the security of informant witnesses both for those individual witnesses but also to maintain the flow of information from such witnesses.

Legislation

1. [10]

   The relevant legislative provisions are as follows:

Uncontested and redundant orders

1. [11]

   Part way through the pre-trial hearing it was determined that “Joseph Read” would not be called to give evidence. Accordingly, the DPP no longer seeks an AVL order in relation to that witness.

2. [12]

   Neither accused objected, at any stage, to orders relating to UCO Aaron, Dr Pal, Nicholas Walker or Gail Rogers (Muscat). The affidavit of the DPP solicitor explains the circumstances relating to each of those witnesses. One is an undercover police officer and one is an expert medical witness (a neurosurgeon) now based in Canberra. The other two are retired police officers who now work for the Australia Border Force and are based outside of New South Wales.

3. [13]

   In each case, based on the Prosecutor’s statements to the Court and by reference to the paragraphs in sub-s (2) of the Act:

4. [14]

   Accordingly, I will make the orders sought in respect of those four witnesses.

5. [15]

   The accused initially opposed the making of an AVL order or direction in relation to the four “registered source” witnesses (who can be identified by reference to the acronym “RS” at the beginning of their pseudonyms in the notice of motion). However, that objection was only taken if the trial was to be conducted with a jury and was, therefore, contingent on the decision I made in relation to the application for a judge alone trial. I have now decided that the trial will be by judge alone. Having made that order, I confirmed that neither accused opposed the making of a direction that these witnesses give evidence by AVL.

6. [16]

   Accordingly, in the absence of opposition, the provision in sub-s (3) of the Act does not arise. However, I must still consider the prohibition on giving the direction if any of the matters in sub-s (2) arise.

7. [17]

   There is a great deal of evidence in the confidential material tendered by the police that supports the making of AVL orders. There is also evidence in the open affidavits that supports giving the directions. Two of the witnesses reside interstate and all have provided evidence under pseudonyms and are “registered source” witnesses.

8. [18]

   I am told, and accept, that the facilities are available: s 5B(2)(a).

9. [19]

   I am not satisfied that the evidence can “more conveniently” be given in the courtroom: s 5B(2)(b).

10. [20]

    While I have been told that there are issues of credibility in relation to some or all of these witnesses, it seems that the critical parts of their evidence are not really in dispute. I confess that, at this stage, I am not fully conversant with the controversies that will arise in relation to the evidence expected to be given by these witnesses. I am reliant on counsel for both sides. Neither accused, each represented by Senior Counsel, submitted that it would be unfair for the direction to be given and, as I have said, any opposition was contingent upon the trial being determined by a jury. Accordingly, I am not satisfied that making a direction would be unfair to the accused: s 5B(2)(c).

11. [21]

    Finally, s 5B(2)(d) does not arise on the material. It is expected the witnesses will give the evidence.

12. [22]

    While the power to make the direction is discretionary (“a NSW court may make an order”), the evidence in the confidential material strongly militates in favour of the making of an order.

13. [23]

    Accordingly, I will direct that each of the “Registered Source” witnesses gives evidence by AVL.

Witness A

1. [24]

   Once the order for a trial by judge alone was made, Senior Counsel for Mr Hosseinishoja indicated that, contrary to the position that had been taken throughout the pre-trial hearing, there was no opposition to a direction under s 5B that Witness A give evidence by AVL from a place other than the courtroom. The withdrawal of opposition was based on my decision that the trial is to be conducted by judge sitting without a jury.

2. [25]

   However, Ms Cunneen SC, appearing for Mr Abdaly, maintained her client’s opposition to a direction being given and made brief submissions explaining that position.

3. [26]

   Emphasis was placed on the fact that the evidence of Witness A will be crucial to the prosecution case against her client. No other witness is expected to give direct evidence that Mr Abdaly was part of the group summoned by Mr Sultani and which committed the bashing of Mr Srbin. Ms Cunneen also noted that Witness A is expected to give evidence that Mr Abdaly was armed with a baseball bat at a time proximate to the bashing.

4. [27]

   The Prosecutor acknowledged the importance of Witness A’s evidence:

5. [28]

   It seems that if Witness A’s evidence is accepted to the requisite criminal standard, the accused will likely be found guilty of homicide, and probably murder. If it is not accepted, the accused is likely to be acquitted. In other words, an assessment of Witness A’s credibility is crucial to the outcome of the trial.

6. [29]

   Ms Cunneen submitted: [14]

7. [30]

   These are powerful submissions.

8. [31]

   In Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250, Bell P (as his Honour then was and with whom Bathurst CJ and Payne JA agreed) said:

9. [32]

   I have previously noted the tension between that decision and the decision of the Court of Criminal Appeal in KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249: R v Al Batat & Ors (No 1) [2020] NSWSC 967 at [23]-[24].

10. [33]

    In KN v R the Court was dealing with an application for a stay pending a proposed interlocutory appeal from the decision of a District Court judge making a direction for a complainant to give evidence by AVL. The Court made the following observations:

11. [34]

    As I did in R v Al Batat (No 1), I prefer to follow the more recent decision of the Court of Appeal. That is, I am satisfied that where an important witness is to be subject to a credibility attack, it is preferable that the witness gives evidence in the courtroom. This approach accords with observations made in other cases decided at first instance: ASIC v Rich [2004] NSWSC 467; (2004) 49 ACSR 578 at [22] (Austin J) and Hughes v Whittens Group P/L [2017] NSWSC 329 at [21].

12. [35]

    In the circumstances of this case, and as the Judge called upon to make a determination of guilt in a murder case, I am strongly inclined to the view that Witness A should give evidence in the courtroom.

13. [36]

    However, the “interests of the administration of justice” is an expression of extremely wide import and, before reaching a conclusion on the issue, it is necessary to refer to the confidential evidence and matters raised by the Commissioner and the DPP.

14. [37]

    It is inappropriate to articulate the matters raised by the Commissioner and the evidence tendered confidentially. I can say that the matters raised are significant and have considerable bearing on a conclusion as to the “interests of the administration of justice” for the purpose of s 5B(3).

15. [38]

    I have considered all the evidence tendered and earlier identified.

16. [39]

    In relation to Witness A, I have paid careful attention to paragraphs 12-20 of MFI C-1, paragraphs 29-31 of MFI C-2, paragraph 4 of MFI C-3. I have also read the full, unredacted, exchange of emails between Officer Hunt and Witness A.

17. [40]

    Having invited the Commissioner to provide more detail of the matter expressed in paragraph 3 of MFI C-3, and indicating that I did not accept what was there deposed to, I have further considered the issue raised in the light of the detailed and helpful confidential affidavit of Assistant Commissioner Maloney (MFI C-4).

18. [41]

    Without going into the detail of the confidential material, and without meaning to be exhaustive, I have considered carefully and anxiously:

    1. (1)

       The security and safety of the Witness A.

    2. (2)

       The views expressed both by the witness and the police charged with securing his attendance and protecting his safety.

    3. (3)

       The safety and security of the public in and around the court complex and more generally.

    4. (4)

       What I will call the “resources issue”, its impact on policing more generally, and the safety of the community (which may be indirectly affected).

    5. (5)

       The public interest that witnesses such as Witness A be treated in such a way that will encourage other witness, in a similar position to him, to co-operate with law enforcement authorities in the prosecution of serious criminal offences.

    6. (6)

       The many other relevant matters raised in the extensive volume of material tendered.

19. [42]

    In terms of the Ex VD C-9, the unredacted copy of Ex VD-7 and VD-8, I accept the Commissioner’s submission that the unredacted version of these emails gives a somewhat different complexion to the communications between investigators and the witness. However, and it is not possible to be explicit in this judgment, I am not aware that, currently, there is any explicit or direct threat or concern. Having said that, the concerns raised in the confidential material are real and serious and must be given significant weight in what is a difficult decision.

20. [43]

    As was submitted, an assessment of this risk is more about the grave consequences of the risk manifesting itself, rather than a calculation of the probability that it might. [15] I am unable to act on the submission that the threat and risks have been exaggerated. [16]

21. [44]

    As to the resources issue, the issues raised by the police are likely to be alleviated by the fact that none of the other witnesses dealt with in the confidential material will now be required to attend the court. Each will give evidence by AVL.

Conclusion

1. [45]

   This is a difficult decision. There are powerful factors on both sides.

2. [46]

   The best assessment of Witness A’s evidence will be made if he gives evidence in the courtroom. His evidence is crucial to the decision I will be called upon to make in a few weeks’ time. The consequences of that decision to the parties could not be more serious.

3. [47]

   This consideration cuts both ways. Should Witness A give evidence by AVL, and I feel unable properly to assess his demeanour and reactions as he gives his evidence, any doubt must be resolved favourably to the accused. That is the natural consequence of the burden and standard of proof. It is not in the interests of the administration of justice that a person accused of murder should escape justice because the tribunal of fact is unable to assess a critical witness’s evidence in the most reliable and best way.

4. [48]

   Equally, given the importance of the evidence, the accused is entitled to ensure that I am in the best position I can be to observe any flaws or idiosyncrasies in the way he gives evidence and his demeanour in the courtroom.

5. [49]

   None of this is to overstate the capacity of a trial judge to make determinations of a witness’s truthfulness based on how they look, or to doubt the wisdom of Lord Atkin’s statement that “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour”. [17]

6. [50]

   Once opposition is raised, the onus on this issue lies with the party seeking the AVL direction.

7. [51]

   Despite the important matters raised by the DPP and the police, I am not satisfied that it is in the interests of the administration of justice for the Court to make a direction under s 5B of the Act that Witness A give evidence by audio visual link.

Orders

1. [52]

   Accordingly, I make the following orders:

   1. (1)

      Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998, I direct the following witness are to give evidence by audio visual link:

   2. (2)

      I refuse the application for a direction under s 5B of the Evidence (Audio and Audio Visual Links) Act that Witness A give evidence by audio visual link.